A absolute nullity or full is any act or contract that is considered void due to a violation of morals, the law or public order. For example, a marriage performed by a bigame person has an absolute nullity. It is also called nullity of full right or radical nullity.
Therefore, this nullity is originated by an illicit cause or object, or because some formality or requirement that the laws establish to give value to certain contracts or acts has been omitted, taking into account their nature, and not by the state. o quality of the people who agree or execute them.
Similarly, there is absolute nullity in the contracts and acts of people who are totally incapable. This nullity is aimed at safeguarding the safeguarding of good customs or public order..
Any nullity turns out to be a judicial sanction that takes away the value that any legal act that was born with certain vices or that was not formally born for the world of law could have..
Absolute nullity is instituted according to the interest of law and morality, in order to obtain compliance with the first and protect the second. Therefore, it is not aimed at safeguarding the interest of certain people, but that of the entire community. That is, it seeks to protect the public interest.
It cannot be corrected and is perpetual, without time limits, for which the action for absolute nullity cannot be subject to prescription or confirmation by the parties..
It lies in the sanction that is applied for the breach of any prohibitive or imperative rule of law, when the purpose of said regulation is to protect good customs or the interests of public order..
The legal declaration of absolute nullity can be given at the request of one of the parties, at the request of an injured third party or informally. When absolute nullity appears manifestly in the contract or act, the judge must declare it ex officio, even when there is no request from one of the parties..
The phrase "appears manifestly" implies that just by reading the instrument where the contract or act is contained, the defect that it suffers can be appreciated, without requiring other tests.
When the absolute nullity is due to the transgression of an imperative rule, although the vice has not been protested, it is enough that it has binding force with the legal problem, its recognition is imposed, because private contractual agreements cannot compromise the rules of public order..
It should be taken into account that absolute nullity is not generated by right, but must be declared judicially. Therefore, the legal act that suffers from a defect of absolute nullity will fulfill all its effects as long as this nullity is not declared..
The declaration of absolute nullity in a contract can be alleged in any degree and state of the trial by any person who has an interest in it, except who has entered into the contract or performed the act, because they know or should know the defect that repealed it..
Thus, not all people can request a declaration of nullity. Those who knew or should have known about the vice that revoked the legal act are denied certification to invoke absolute nullity, since no one can take advantage of their own scam.
The judge may and must declare the absolute nullity ex officio if it appears manifestly in the contract or act..
In the same way, the judicial public ministry, which is an auxiliary body of the administration of justice, can also request the declaration of absolute nullity, for the sole interest of the law or morality, since its fundamental mission is to represent the interest general of society before the courts of justice.
The request action to declare an absolute nullity is inalienable, since this nullity is an institution of public order. For this reason, it is not allowed to waive the right to request this statement..
Absolute nullity cannot be cleared through a confirmation or ratification of the parties.
Ratification refers to making a legal act valid without being so. That is, it means waiving to request that a legally vicious act be declared null and void..
The impossibility of ratification is due to the fact that the absolute nullity is established by the general interest of the company. Therefore, it cannot be subject to a particular will.
Some examples of absolute nullity are:
When there is a lack of capacity at the time of celebrating the marriage act. In other words, one of the spouses cannot legally enter into the marriage contract. This can happen, according to the legislation of each country:
If a business contract suffers in some of the elements of its particularity, it causes an absolute nullity because all the elements are required to be correct for the contractual act to have value.
If the defect of nullity is found in the object or in the cause, the nullity is absolute because it lacks legality. This result also occurs when agreeing with absolutely incapable people.
For example, it can be indicated in a document that the Board of Directors of a company adopted a specific agreement, having as support for this a technical study previously carried out..
However, after examining and verifying in detail in the minutes, it is shown that this study referred to does not exist at all. This means that the element of the cause is absent and for this reason the nullity of that agreement is absolute..
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